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Dessulation of Marrige
Dessulation of Marrige
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There are two categories of dissolution of marriage under the Muslim
personal law:
1. Extra judicial dissolution
2. Judicial dissolution
There are four categories of extra judicial dissolution, under the
Muslim personal law:
1. Death Agreement
2. By Husband
3. By wife
4. Mutual
The third category is the right of the wife to give divorce under
the Dissolution of Muslim Marriage Act 1939.
There are two categories of judicial dissolution, under the Muslim
personal law:
1. Lian &
2. Fask.
Talaq:
Under Muslim law Talaq means freedom. The right of giving
freedom by her husband from marriage to wife is called talaq. The
right is enforceable by the husband only.
According to heyday it means relinquishment.
Asaf A.A.Fyzee said, In law,it signifies the absolute power which
the husband possess.
A husband who is sound mind and adult can divorce his wife without
showing any cause. Though to give divorce is so hated and a heinous
act but recognized by law.Talaq is an act of repudiation of marriage
by the husband in exercise of his power which has been conferred on
him. The term divorce includes all separation originating from the
husband and repudiation for the Talaq in limited sense, namely of
separation effected by use of appropriate word. A separation occurs
when a married to live together, but decide to live a part for a while.
Forms of Talaq:
1.Talaq-al-sunnah or Talaq-e-rajee
2.Talaq-al-Biddat or Talaq-al-Bain
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Ila (vow of continence):
Where the husband is of sound mind and of the age of majority,
swears by Allah that he will not have sexual intercourse with his wife
and leaves the wife to observe ideate, he is said to make ila.If the
husband after having pronounced ila abstains from having sexual
intercourse with wife for four months, the marriage is dissolved with
the same result as if there had been an irrevocable divorce pronounced
by the husband. This requires following conditions-
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An example,
Bibi Rehana v. Iqtidar-uddin, after the marriage ceremony was over,
the parents of the boy pushed him into a room where his wife was
waiting for him. It appears from the facts of the case that the husband
was not interested in the marriage. Immediately after entering into the
room he took a vow in the presence of his wife that he would never
have sexual intercourse with her.Soon after living this statement he
came out of the room and repeated the vow in the presence of his
mother and his mothers sister. His fathe than came out of another
room and he once more repeated that vow.the court refused to accept
the version of the husband. The court said that the husband has failed
to established that there had been a divorce in the ila form.
Talaq-al-Sunnah or Talaq-e-Rajee:
This is a talaq which carries the approval of the prophet. It may be
the most approved form,i.e.,Ahsan and Hasan.
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2. the pronouncement of divorce must be done when the wife is in
State of tuhr(purity), Which means when she is free from her
Menses.
3. Husband must abstain from intercourse for the period of iddat
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be made in three consecutive tuhrs.
3. in case of a non-menstruating wife, the three pronouncements
must be made during the successive intervals of 30 days.
4. no sexual intercourse must take place during these three periods
Of tuhr.
Talaq-al-Biddat or Talaq-al-Bain:
It is a disapproved and sinful from a talaq. It was introduced by
Ommeyyads in order to escape the strictness of law. To be of this
form, it must satisfy the following conditions-
An example,
Saiyyad Rashid Ahmed v. Anisa khaton 1932, once Ghayas
Uddin pronounced triple Talaq in the presence of witness though in
the absence of the wife. Four days later a Talaqnama was executed
which stated that three divorces were given. However, husband and
wife still lived together and had children. While the husband treated
her like a wife, it was held that since there was no proof of
remarriage, the relationship was illicit and the children were
illegitimate.
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husband says, I divorce thee thrice. It is immediately effective and
irrevocable.
Conclusion:
It is argued that Islam has given unfettered power to the husband to
give divorce to his wife without any cause. But experience shows that
greater suffering is endangered by the husbands withholding divorce
than by his irresponsible exercise of this right. Under such conditions
the power to release herself is the surest safeguard for the wife. No
system of law can produce material happiness, but humane laws may
at least alleviate sufferings. And when marital life is wrecked, the
home utterly broken up by misunderstanding, jealousy, cruelty,
infidelity, what greater boon can a spouse have to secure his/her
liberty. Divorce of course, a social evil in itself, but it is a necessary
evil. It is better to wreck the unity of the family than to wreck the
future happiness of the parties by binding them to a companionship
that has become odious. Thats why Quran permits divorce partly
because to enable men to get rid of an odious union.
It has shown in the dissertation that the judiciary has taken efforts
to curb the practice of arbitrary, unilateral pronouncement of divorce
by Muslim husbands, and affirmed the right of the woman to
challenge such a divorce. There is no doubt that Muslim women have
recourse to the courts to challenge arbitrary unilateral talaq, and hence
arbitrary talaq becomes a non-issue if recourse to law is taken.
However, many women are unable to take recourse to law due to lack
of awareness, poverty, illiteracy, financial implications of litigation
and community opposition against such a move. How can the
judgements impact women's lives, when women themselves, and the
communities they live in, believe that they have been legally
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divorced? The challenge then is to educate women living in
communities about the legal position and enable their access to law,
as well as to promote community awareness and acceptance of the
law as stated through judgments.
REFERENCES
Books
1. Aqil Ahmed. Text book of Mohamadan Law. 21st ed. (Allahbad: Central
Law Agency, 2004).
2. Md. Altaf Hossain. Islamic Jurisprudence and Muslim Ain Sohaika.( In
Bangali), (Dhaka: City Law Book, 2003).
3. Shaukat Mahmood, Principles and Digest of Muslim Law, 6th ed. (Lahore:
Legal Research Centre, 2002).
4. Asaf A. A. Fyzee, Outlines of Muhammadan Law, 4th ed. (Oxford: Oxford
University Press, 1993).
Statutes
1. Muslim Family Law Ordinance, 1961.
2. Dissolution of Muslim Marriage Act, 1939.
Cases
1. Bibi Rehana v. Iqtidar-uddin, (1943), ALL, 295.
2. Mst. Balaquis Ikram v. Najmal Ikram, 2(1959), WP, 321.
3. Md. Khan v. Shahmali, AIR (1977), Cal, 90.
4. Zafar Husain v. Ummat-ur-Rahman, AIR (1999), All, 182.
5. Jauri Beebee v. Sheikh Moonshee Beparee, 3 (1865), WR, 93.
6. Nurjahan Bibi v. Mohd. Kazim Ali, AIR(1977), Cal, 90.
7. Mohd. Khan v. Mst. Shahmali, AIR(1972), J.&K., 8.
8. Muhammad Ali Akbar v. Fatima Begum, AIR(1929), 660.
9. Mst. Sadiqa Begum v. Ata Ullah, AIR (1933), 885.
10. Janson v. Driefontein Consolidated Mines, Ltd,(1902) Appeal Cases 484.
11. Syed Ziauddin v. Parvez Sultana, (1943) 210 IC 587.
12. Zubaida Begum v. Sardar Shah, [1] (1971) KLT 663.
13. Aboobacker v. Mamu koya, AIR (1960), All, 684.
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14. Itwari v. Asghari, AIR(1945), Lah, 51.
15. Umar Bibi v. Md. Din, AI.R (1971), Ker, 261.
16. Safura khatun v. Osman Gani Mollah, 9 (1957), DLR, 455.
17. Shah Banu Case, AIR(1985), SC, 945.
18. Hefzur Rahman v. Shamsun Nahar Bagum and Others, 59(1999), DLR, AD, 172.
19. Shamim Ara vs State of U.P, 7(2002), SCC, 527.
Web Pages
1.[ttp://www.google.com.bd/#hl=bn&q=Triple+talaq%2C+women%27s+rights+and
+Indian+judicial+responses&meta=&aq=&oq=Triple+talaq%2C+women%27s+rights+a
nd+Indian+judicial+responses&fp=ed0bd4d3e01e7a66, last visited on 30 December
2009].
2.[http://www.legalaid.qld.gov.au/Legal+Information/Relationships+and+children/
Relationships/Separation+-+what+it+means.htm ,last visited 13 October 2009].
3. [http://www.wluml.org/english/pubs/pdf/misc/talaq-i-tawfid-eng.pdf last visited
13 October 2009].
4. [http://www.lawyersclubindia.com/articles/-Divorce-by-wife-IN-MUSLIM-
LAW/1632/ last visited on 21 December 2009].
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